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Owens-Corning Fiberglas Corp. v. Malone6/5/1998
nstitutional limits under the Fourteenth Amendment. "The aggregate effect of such awards may reach far beyond their purpose to punish and deter, becoming what has been coined `overkill.'" Jones et al., Multiple Punitive Damage Awards for a Single Course of Wrongful Conduct: The Need for a National Policy to Protect Due Process, 43 Ala. L. Rev. 1, 1 (1991).
In deciding whether multiple punitive damage awards against OCF for the same course of conduct--here Kaylo-related claims--offend OCF's due process rights, courts cannot "draw a mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable that would fit every case." Haslip, 499 U.S. at 18. However, we believe the following criteria, derived from BMW and from the Green Oil factors the Supreme Court endorsed in Haslip, are proper for posttrial constitutional review of whether the purposes of punishment and deterrence have been adequately served by previously paid punitive damage awards for the same course of conduct: (1) the degree of reprehensibility of the defendant's misconduct; (2) the profit earned by the defendant from its misconduct; (3) the defendant's financial position; and (4) criminal sanctions, if any, imposed for the same conduct. See BMW, 517 U.S. at 574-75; Haslip, 499 U.S. at 22; Green Oil, 539 So.2d at 223-24; see also Garnes v. Fleming Landfill, Inc., 413 S.E.2d 897, 908-10 (W. Va. 1991). Like a single punitive damage award, aggregate awards "enter the zone of arbitrariness" under the Due Process Clause " nly when [the aggregate] award can fairly be characterized as `grossly excessive'" in relation to the legitimate interests in punishment and deterrence. See BMW, 517 U.S. at 568.
We agree with the Second and Third Circuits, neither of which has foreclosed the possibility of a successful substantive due process challenge under an aggregate punitive damages award theory, that such a challenge can properly be evaluated only if the defendant develops a sufficient record. See Dunn, 1 F.3d at 1389; Pittsburgh Corning Corp., 901 F.2d at 281. "`Only with [sufficient] factual information can the judge determine that the aggregate of prior awards punishes the entirety of the wrongful conduct to the limit of due process.'" Dunn, 1 F.3d at 1389 (quoting Pittsburgh Corning Corp., 901 F.2d at 281). In a posttrial review to decide whether a punitive damages award, when aggregated with previously paid punitive damage awards for the same course of conduct, is unconstitutionally excessive, trial courts may consider evidence beyond what is admissible during the trial. After the trial, the danger of unfair prejudice, confusion of the issues, or misleading the jury no longer exists. Moreover, the issue is then one of law--at what point do multiple punitive damage awards arising from the same course of conduct violate due process. Here, the trial court properly allowed OCF to present its "enough is enough" evidence when Frank testified at the posttrial hearing. The court of appeals also considered Frank's posttrial testimony. Using the criteria we have gleaned from BMW and Green Oil, we now examine the record, including the evidence from the posttrial hearing, to determine whether due process requires an end to further Kaylo-related punitive damage awards against OCF in Texas.
2. Analysis
First, and most important, a court should give considerable weight to the degree of reprehensibility of the defendant's conduct. See BMW, 517 U.S. at 575. " he duration of that conduct, the defendant's awareness, any concealment, and the existence and frequency of similar past conduct," are all relevant in gauging reprehensibility. See Haslip, 499 U.S. at 21 (discussing Green Oil factors). As we d
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